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Rehabilitating Bentham's Theory of Excuses

Excuses furnish legal theory with one of its great mysteries. The two abiding families of punishment theory, the utilitarian and the retributive, offer quite different justifications. For retributivists, excusing conditions either break the link between the defendant's harmful conduct and any inference of bad character, or mitigate the guilt of a wrong choice because the right choice was, under the circumstances, also a hard choice. The case for excuses is thus practically built into the standard retributive accounts.

Explaining excuses poses more of a challenge for utilitarians. Jeremy Bentham argued that excuses follow logically from the principle of frugality in punishment. The frugality principle holds that punishment, which entails the deliberate infliction of pain on fellow creatures, is always an evil and so can only be justified by countervailing benefits. In cases of unexcused wrongdoing, society can expect to benefit from punishment by deterring similar conduct in the future.

Bentham argued that infancy, insanity, intoxication and duress made punishment inefficacious. These excusing conditions make the legal threat an ineffective deterrent, either because they make the actor less rational than a safe, sane and sober adult, or because the rational thing for the actor to do in the face of duress is to comply with the private rather than the public threat. The frugality principle then justifies the excuses. Punishing the undeterrable inflicts pain to no purpose and is prima facie wrong.

Today Bentham's theory is famous chiefly because of the memorable phrase H.L.A. Hart used to dismiss it. Hart called Bentham's argument a "spectacular non sequitur" and the phrase has stuck. Hart argued that Bentham had confused the fact that the instant defendant was not deterred with the proposition that others facing similar or apparently similar situations are undeterrable. So Hart and other modern utilitarians, such as Richard Brandt, have defended the excuses by suggesting that a system that did not recognize them would produce negative consequences that, although long-term and diffuse, outweigh any immediate cost to general deterrence.

This essay, contributed to a symposium on Excuses at the Texas Tech University School of Law, defends Bentham's basic account of excuses against Hart's criticism. The essay makes two primary supporting arguments. The first is an appeal to what I call the pluralism constraint. Given a pluralistic political system that includes freedom of thought and expression, criminal justice policy will not long endure public perceptions of that policy as either very dangerous or very unfair. This is not to say that utilitarian and retributive theories are compatible. It is to say, rather, that both families of theories will have enough support in a liberal democracy of the modern type to make very grave offenses to either unsustainable.

It follows that if excuse doctrine imposes high costs on general deterrence excuse doctrine likely would be changed. Now if the long-term costs foreseen by writers like Hart and Brandt were obvious and substantial, society might bear a high cost indeed for retaining the excuses. The ill effects of denying excuses, however, are conjectural, even dubious. I suspect that utilitarians who reject Bentham's account are mollifying intuitions about fairness rather than constructing solid consequentialist arguments for the excuses.

If that is so, the pluralism constraint means that the excuses remain because Bentham was right. They don't threaten general deterrence, at least as they are presently constructed. Indeed, when it comes to the positive law, and at least in the United States to the trend of its reform, excuse doctrine makes more compromises about fairness than it does about efficiency. The pluralism constraint also means that modern systems cannot long survive perceptions of gross unfairness any more than they can survive the perception that public safety is gravely jeopardized. The law reflects a jumble of principles in very ragged equipoise. We recognize excuses in the core cases of very hard choices, and then limit the exemption from liability, sometimes quite unfairly, lest social control unduly suffer.

The second line of argument picks up where the first leaves off. If public safety can tolerate the excuses, why do the excuses cost so little in terms of general deterrence? Here I attempt to rehabilitate Bentham's argument directly, generally following hints left by Bentham himself, and a supplemental account given, then abandoned, by Glanville Williams. If the legal process can assess accurately the presence or absence of excusing facts, and these facts when present greatly reduce if not eliminate the behavioral influence of legal punishment on typical persons, Bentham's basic point holds good. The burden of my second argument, then, is to corroborate the presumption claimed by the first. We have excuses not because fairness requires us to endanger the public safety, but because the public safety permits us to be less unfair than modern utilitarians like Hart have thought the interest in general deterrence requires us to be.